of contributory negligence, is a similar argument to the one urged in Kelley v. Curtiss, supra, where the court, discussing this very point, said, 16 N.J. at page 273, 108 A.2d at page 435:
'Viewed as alternative findings, the judgment is determinative in Curtiss' favor upon both grounds. Such is the rule followed in most jurisdictions, 65 Harv.L.Rev., supra, at p. 845; it is the rule favored by the Restatement, Judgments, sec. 68, comment n. The rule rests upon the rationale that 'Where the judgment is based upon the matters litigated as alternative grounds, the judgment is determinative on both grounds, although either alone would have been sufficient to support the judgment. * * * a judgment for the defendant is not based on one of the issues more than on the other; and it must be said either that both are material to the judgment or that neither is material. * * * and hence both should be held to be material.' Restatement, supra, comment n. The alternative choice of no collateral estoppel as to either finding is not favored. Scott, Collateral Estoppel by Judgment, 56 Harv.L.Rev. 1, 11 (1942).'
The charge to the jury in the original suit involving the parties now before the court, included similar instructions concerning a finding of no cause for action for the plaintiff on his claim, or the defendant on its counterclaim, if the jury found no negligence in the defending party, or contributory negligence in the complaining party. The verdict of no cause against both Mc Intosh and Chicago necessarily included, in the light of the Kelley case, a finding of contributory negligence in both parties.
The issue of Mc Intosh's liability, in the very same accident in which Virginia Thompson was injured, has been litigated. The verdict of no cause for action in Mc Intosh's suit against Chicago necessarily included within its scope the element of contributory negligence.
Mc Intosh is estopped from raising anew the question of his liability to Virginia Thompson under the doctrine of collateral estoppel. Kelley v. Curtiss, supra; and see Creter v. Davies, 1954, 31 N.J.Super. 402, 403, 107 A.2d 17.
Although count two of Chicago's amended counterclaim, joining McIntosh as a third party defendant and answerable as a joint tortfeasor, was severed at the trial, Mc, Intosh's responsive pleading to count two asserted no affirmative defense vis a vis Virginia Thompson. Affirmative defenses, such as contributory negligence or assumption of risk, among others, must be affirmatively pleaded. 28 U.S.C. Rule 8(c), Federal Rules of Civil Procedure; and the equivalent rule in New Jersey practice is R.R. 4:8-2.
The Mc Intosh pleadings offered no defenses personally exonerating him from liability for the Thompson injuries, other than non-negligence, which latter defense was swept aside by the jury verdict.
The issue of Mc Intosh's negligence, in the accident wherein Virginia Thompson was injured, having thus been determined, and Mc Intosh having had full opportunity in a trial by jury to refute the charge of contributory negligence, and having failed to do so, I must concluded that no further fact issue remains to be decided.
Chicago's purpose in moving to sever count two of its amended counterclaim is obscure, and its action has led to additional and unnecessary circuitous steps to obtain a result which could have been accomplished at the consolidated trial. However, Chicago has not precluded itself from moving for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Indeed, the grounds for such a motion were generated in the jury's verdict, and further litigation could only be repetitious of the past trial. Since Chicago has met the requirements of the Joint Tortfeasors Contribution Act, it is entitled to contribution from McIntosh in the amount for which suit has been brought.
Settlement of an order in conformity herewith shall be noticed by Chicago for Tuesday, September 3, 1957, a motion day. An order may be filed sooner if counsel consents as to form, reserving his objections as to substance.